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Threat conviction for Facebook chat considers line between fantasy, intention

In a case demonstrating the grey zone between fantasy and the intention to inflict pain on someone, an Ontario Superior Court case has convicted a teenager who discussed disturbing and deviant sexual acts on Facebook of threatening bodily harm.

‘The problem is that the judge found it necessary to expand the scope of the law on threatening to cover a situation that was clearly meant to be covered by the criminal harassment provisions,’ says Craig Penney.

In a March 19 ruling in R. v. D.(D.), Ontario Court Justice Joseph De Filippis found 18-year-old D.D. guilty of uttering a threat after he talked about inflicting sexual bodily harm on a schoolmate during a December 2012 Facebook conversation the judge described as “disturbing.” The judge convicted D.D. despite his efforts to withdraw from the conversation as he claimed didn’t want to hurt her.

The teen committed the crime at the age of 17. A few days after meeting a 16-year-old girl at school, he was talking to her via a Facebook chat in which he said he had to confess something to her.

“The reason I broke up with my ex three years ago is cuz I was afraid for her safety,” D.D. told the girl during the Dec. 6, 2012, chat.

“I have thoughts about u sexual ones that are in that category,” he added before going into details about wanting to cut her, break her legs, and bruise her. The specific acts D.D. suggested he’d like to commit are extremely graphic, violent, and disturbing.

When the girl said she wouldn’t allow any man to hurt her, the defendant replied, “U see that’s where ur wrong.”

He added, “I don’t care if u want it to happen or not.”

The complainant at times replied to D.D.’s suggestions of physical harm with “lol” and “OK,” something she later told the court she said out of discomfort. She also said she was “creeped out” after the chat and showed the written conversation to a friend the next day. Police got involved after a teacher became aware of the conversation.

After his arrest, police found a letter in D.D.’s bag that detailed more about his desire to hurt women during sex. They included the statement: “I would kill to get that. I will kill.”

The legal issue at the heart of the case was whether the accused was merely talking about his fantasies, as the defence argued, or if his words were in fact aiming to intimidate.

At one point during the conversation with the girl, D.D. tried to end it. “I don’t want to hurt u so bye.” But the complainant draws him back, asking him not to push her away.

“According to the defence, when taken in context, the defendant’s utterances were not threats; he simply conveyed his fantasies — that is, his desires, not his intended action,” wrote De Filippis. But the judge also considered a video clip the accused had sent to the complainant during their Facebook chat. The clip depicted someone slitting a woman’s breasts.

“It is clear that the defendant desired to cause bodily harm to the complainant. He did not speak in jest; this is manifest by the conversation as a whole, including his admission that he can only experience gratification by inflicting pain,” wrote De Filippis.

“Any doubt about his seriousness is erased by the video clip he sent to the complainant (depicting breasts being sliced) and his possession of the document seized upon arrest.”

Toronto criminal defence lawyer David Cohn says the case illustrates the difficult distinction between wanting to commit a crime, which isn’t illegal, and intending to intimidate.

“It shows that there are 50 shades of grey between desire and intention,” says Cohn.

He adds: “Where the line passes beyond desire and to intention is very grey.”

But what D.D. said during the conversation “goes beyond simply an expression of desires,” according to Cohn.

For Toronto appellate lawyer Mark Halfyard, the conversation appears as if D.D. was “putting the cards on the table” and figuring out whether the complainant would accept his deviant sexual desires.

“I think the problem with this case is simply that some of the extent of the comments . . . are the type of thing that basically no one would ever willingly consent to,” adds Halfyard, noting that although the comments may seem to be a threat, D.D.’s intent to intimidate is hard to establish.

The conversation takes place over Facebook and not in person, a fact that adds to the difficulty of determining whether D.D. intended to threaten the complainant, says Halfyard. “You don’t get the body language, you don’t get the demeanour of the person.”

Criminal defence lawyer Craig Penney says the case was one of criminal harassment instead of a threat. Criminal harassment only requires that the accused was reckless and not necessarily intentional, says Penney.

“The young defendant was not threatening the complainant to do or not do anything, so much as he was toying with her for his sexual and other amusement. That fact is unassailable,” he says.

“The problem is that the judge found it necessary to expand the scope of the law on threatening to cover a situation that was clearly meant to be covered by the criminal harassment provisions.” The case involves a Crown screening failure, adds Penney.

In his ruling, De Filippis said the fact that D.D. and the complainant had known each other for only three days was significant.

“This is not a couple with a history of sexual practices,” he wrote.

"Indeed, the brevity of their relationship is just as relevant to intent. Since the defendant could not know how the complainant would respond to his statements, it is reasonable to conclude that he was serious when he said he did not care if she consented to being harmed.”

The case has some similarities to a high-profile matter involving New York police officer Gilberto Valle. The court found him guilty last month in a bizarre conspiracy to kill and eat women. That case “hinged on a delicate distinction between fantasy and reality,” according to the New York Times. The Times reported that after the ruling, the officer’s defence counsel said the court had convicted him for his “very ugly thoughts.”

Valle had been divulging his fantasies in Internet chat rooms, something that isn’t criminal on it own. But the court also found Valle took additional steps to turn fantasy into reality when he conducted surveillance on his potential victims and ran searches on Google on how to abduct women.

In D.D.’s case, De Filippis noted it did not matter whether the conversation did in fact intimidate the complainant as long as the accused meant for his words to have that outcome.

“I agree with the Crown that it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously,” he wrote.

“All that needs to be proven is that they were intended by the accused to have that effect.”

The judge added: “I find that the defendant is a sadist. . . . I have no doubt these words were meant to be taken seriously and that they intimidated the complainant. Indeed, I am confident he derived pleasure from the threats themselves.”

More important than what he was charged with is what they will do with this young man now. He needs therapy. A lot of it. He probably needs medications. He needs to engage in courses to try to correct some of his deep-seated hatred towards women. This is a dangerously sadistic misogynist in the making.

What can we do to rehabilitate him and protect society from his harmful urges? The research suggests that sexual sadists are hard to rehabilitate, but I think we have to at least give it a concerted effort. What's our alternative? Locking these sorts of people up and throwing away the key?

I feel for his parents and I hope they too get help for the guilt and confusion they are bound to feel over the supposed failure of raising their son.

I just hope we're not reading a case note about this man a decade from now after he's carried out these vile fantasies.